Several unmarried mothers being brought before a court heari Wellcome V0014901

In the

law of England and Wales English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. The judiciary is independent, and legal principles like fairness, equality be ...

, a bastard (also historically called whoreson, although both of these terms have largely dropped from common usage) is an

illegitimate child Legitimacy, in traditional Western common law, is the status of a child born to parents who are legally married to each other, and of a child conceived before the parents obtain a legal divorce. Conversely, ''illegitimacy'', also known as '' ...

, one whose parents were not

married Marriage, also called matrimony or wedlock, is a culturally and often legally recognised union between people called spouses. It establishes rights and obligations between them, as well as between them and their children (if any), and b ...

at the time of their birth. Until 1926, there was no possibility of ''post factum'' legitimisation of a bastard.

Etymology

The word ''bastard'' is from the

Old French Old French (, , ; ) was the language spoken in most of the northern half of France approximately between the late 8th -4; we might wonder whether there's a point at which it's appropriate to talk of the beginnings of French, that is, when it wa ...

, which in turn was from Medieval Latin . In the modern French , the circumflex (â) merely represents the loss of the 's' over time. According to some sources, may have come from the word , which means pack saddle, the connection possibly being the idea that a bastard might be the child of a passing traveller (who would have a pack saddle). In support of this is the Old French phrase loosely meaning "child of the saddle", which had a similar meaning. A more defined possibility is that such a traveller was a member of the , referring to the division of an army who arrived in town with their pack saddles the night before the troops, and left the day after, so that they may deal with all of the provisions of an army, and even do advanced scouting. This meant that for two days, they had unfettered access to all of the women in town, and were therefore the ones most likely to be the cause of the town's illegitimate offspring. (This explanation is apocryphal, but no attempt at dispute seems to have been proffered.)

Common law origin

Bastardy was not a status, like

villeinage A villein is a class of serf tied to the land under the feudal system. As part of the contract with the lord of the manor, they were expected to spend some of their time working on the lord's fields in return for land. Villeins existed under a ...

, but the fact of being a bastard had a number of legal effects on an individual. One exception to the general principle that a bastard could not inherit occurred when the eldest son (who would otherwise be heir) was born a bastard but the second son was born after the parents were married. The Provisions of Merton 1235 (20 Hen. 3 c. IX), otherwise known as the Special Bastardy Act 1235, provided that except in the case of real actions the fact of bastardy could be proved by trial by jury, rather than necessitating a bishop's certificate.

Reform

Post-hoc legitimisation was introduced under the

Legitimacy Act 1926 The Legitimacy Act 1926 ( 16 & 17 Geo. 5. c. 60) is an act of the Parliament of the United Kingdom. The purpose of the Legitimacy Act 1926 was to amend the law relating to children born out of wedlock. Act The fundamental principle of the Legi ...

(16 & 17 Geo. 5 c. 60) and the Family Law Reform Act 1969 (c. 46) allowed a bastard to inherit on the

intestacy Intestacy is the condition of the estate of a person who dies without a legally valid will, resulting in the distribution of their estate under statutory intestacy laws rather than by their expressed wishes. Alternatively this may also apply ...

of his parents.

In Medieval Wales

In Medieval Wales, prior to its conquest by and incorporation in England, a "bastard" was defined solely as a child not acknowledged by their father. All children acknowledged by a father, whether born in or out of wedlock, had equal legal rights including the right to share in the father's inheritance. This legal difference between Wales and England is often referred to in the well-known "

Brother Cadfael Brother Cadfael is the main fictional character in a series of historical murder mysteries written between 1977 and 1994 by the linguist-scholar Edith Pargeter under the name Ellis Peters. The character of Cadfael himself is a Welsh Benedic ...

" series of Medieval

detective A detective is an investigator, usually a member of a law enforcement agency. They often collect information to solve crimes by talking to witnesses and informants, collecting physical evidence, or searching records in databases. This leads the ...

mysteries.

Notes

{{Reflist

References

William Blackstone Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, Justice (title), justice, and Tory (British political party), Tory politician most noted for his ''Commentaries on the Laws of England'', which became the best-k ...

Commentaries on the Laws of England The ''Commentaries on the Laws of England'' (commonly, but informally known as ''Blackstone's Commentaries'') are an influential 18th-century treatise on the common law of England by Sir William Blackstone, originally published by the Clarend ...

York York is a cathedral city in North Yorkshire, England, with Roman Britain, Roman origins, sited at the confluence of the rivers River Ouse, Yorkshire, Ouse and River Foss, Foss. It has many historic buildings and other structures, such as a Yor ...

City, Legal Publish Press, 1960. *Given-Wilson C. & Curteis A., The Royal Bastards of Medieval England, London, 1984

External links

* http://www.duhaime.org/LegalDictionary/B/Bastard.aspx English family law Legitimacy law Children's rights in England Children's rights in Wales Family law legal terminology